Citation Nr: 1321729 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 11-27 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Pension Management Center In Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to nonservice-connected death pension benefits greater than $2020 per year. ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1951 to September 1953. He died in February 1972. The appellant is his daughter and has been determined to be the helpless child of the Veteran for purposes of VA benefits. This matter is before the Board of Veterans' Appeals (Board) on appeal of decisions issued in March 2010 and April 2011 by the Pension Management Center in Milwaukee, Wisconsin. The March2010 decision granted the appellant legal entitlement to nonservice-connected death pension benefits as a helpless child of a Veteran at the rate of $2020 per year. The April 2011 decision denied service connection for the cause of the Veteran's death. The appellant seeks VA benefits under whichever of these benefit plans would afford the greater monetary benefits. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died in February 1972; the causes of death were infarction of the lung, pulmonary embolism, infarction of the myocardium, and chronic pancreatitis as a result of alcohol addiction. 2. At the time of his death, the Veteran was not service-connected for any disease or disability. 3. The Veteran's death was not due to any disease or disability that was incurred in service or was otherwise related to service. 4. The appellant is entitled to non-service connected pension benefits based on her status as the Veteran's helpless child. 5. The rate of payment for non-service connected pension benefits for children of war-time veterans has been set by Congress at $2020 per year. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1310, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.310, 3.312 (2012). 2. The criteria for entitlement to non-service connected pension benefits in excess of $2020 per year have not been met. 38 C.F.R. § 1313, 1318, 1542 (West 2002 & Supp. 2013); 38 C.F.R. § 3.24 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Duty to Notify Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the context of a claim for dependency and indemnity compensation (DIC) benefits, including service connection for the cause of the Veteran's death, § 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a pre-decisional adjudication of the claim prior to providing a § 5103(a)-compliant notice. Here, the appellant was sent a letter in December 2010 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Duty to Assist Next, VA has a duty to assist the appellant in the development of the claim. This duty includes assisting in the procurement of service treatment records and pertinent treatment records and providing an examination or medical when necessary to decide the claim. 38 U.S.C.A. § 5103A; DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). VA is excused from the obligation to obtain a medical opinion only when "no reasonable possibility exists that such assistance would aid in substantiating the claim." Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008). The Wood Court interpreted DeLaRosa as holding that a medical opinion was not required when there was no competent evidence of the disability claimed to have caused the Veteran's death. In this case, the appellant has advanced no theory as to how the cause of the Veterans death was related to service and there is no other evidence suggesting that the causes of the Veteran's death were service connected (i.e. that a service connected disease or disability caused or contributed to the cause of death). A medical opinion could not aid in substantiating the claim, because the record does not even suggest questions that could be answered in such an opinion. The Veteran's service treatment records are unavailable and presumed to have been destroyed in a 1973 fire at the National Personnel Records Center. Destruction of service medical records does not create a heightened benefit of the doubt, but only a heightened duty on the part of VA to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision. Cromer v. Nicholson, 19 Vet App 215 (2005); Russo v. Brown, 9 Vet. App. 46, 51 (1996). Where service medical records are missing, VA also has a duty to search alternate sources of service records. Washington v. Nicholson, 19 Vet. App. 362 (2005). Alternate record sources were searched and VA was able to obtain records from the Army Surgeon General pertaining to the Veteran's health in service. These relate to his treatment at Walter Reed Medical Center shortly before service separation and note diagnoses of passive-aggressive reaction and urethritis. VA attempted to obtain records of the Veteran's reported treatment by VA. It was able to obtain an autopsy report, but the VA facility reported that it had no record of treatment for the Veteran. The appellant noted in her substantive appeal that the RO had sought records from the Alexandria VA Medical Center, but she recalled that his terminal hospitalization had taken place at a VA facility in Pineville, a neighboring town. The Board notes; however, that the address of the Alexandria VAMC is actually in Pineville. The appellant also asserted in her substantive appeal that VA had not sent her forms to authorize VA to obtain relevant private treatment records. The December 2010 VCAA notice letter; however, informed the appellant that if there were relevant private treatment records she should complete the enclosed authorization forms. She has never reported that the Veteran received any specific private treatment. The Board has carefully reviewed the file and concludes that any outstanding relevant evidence is unavailable and further attempts to obtain such evidence would be futile. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Criteria for Service Connection for Cause of Death Service connection will be established for disability resulting from personal injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002). Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Dependency and indemnity compensation (DIC) may be awarded to a surviving spouse or helpless child upon the service-connected death of a Veteran, with service-connection determined according to the standards applicable to disability compensation. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5(a) (2012). The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a) (2012). A service connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related. 38 C.F.R. § 3.312(b) (2012). A contributory cause of death is inherently one not related to the principal cause. 38 C.F.R. § 3.312(c)(1) (2012). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; or, that it aided or lent assistance to the production of death. Id. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. Id. Facts and Analysis At the time of the Veteran's death, he had not been granted service connection for any illness, injury, or other disability. Thus, his death cannot be considered to be the result of any service-connected disability in place at the time of his death. The Veteran's death certificate lists his causes of death as infarction of the lung, pulmonary embolism, infarction of the myocardium due to unknown causes and chronic pancreatitis due to alcohol addiction. There is no evidence of record to indicate that the Veteran's diagnosed causes of death had their onset in service or within the first year after service separation. The Army Surgeon General summary of treatment at Walter Reed Medical Center prior to the Veteran's discharge shows that he was treated for a mental health condition (passive-aggressive reaction) and urethritis. Neither of these conditions was listed as a cause or contributory cause of the Veteran's death. In addition to the Veteran's service treatment records being unavailable, any records of medical treatment through VA have also been determined to be unavailable. In this instance, the Board notes that the claim of service connection for the cause of death was filed and the records were first sought 40 years after the Veteran's death. When the records could not be obtained, the appellant was duly notified in accordance with the requirements of 38 C.F.R. § 3.159(e). The Veteran's autopsy report created in February 1972, shows that the clinical diagnoses were chronic pancreatitis, chronic alcohol addiction, infarction of myocardium, pulmonary embolism, and infarction of a lung. The pathologic diagnoses were massive pulmonary thrombo-embolism, recent hemorrhagic infarction (lateral anterior surface), terminal bronchopneumonia, abence of the appendix and secondary scar, and edentulous. VA has recognized that autopsy reports are particularly probative of the contributory causes of death. 38 C.F.R. § 3.312(a); see Woods v. Peake, footnote 1. There is no evidence of any other medical condition at the time of the Veteran's death. There is no medical or lay evidence that the conditions that were identified on the autopsy and death certificate were in any way related to his military service. It is the appellant's general evidentiary burden to establish all elements of the claim, including evidence of a nexus between service and the current disability or, in this instance, the cause of death. 38 U.S.C.A. § 5107(a); Fagan v. Shinseki, 573 F.3d. 1282, 1286 (Fed. Cir. 2009). In this instance, that evidence has not been furnished and the burden has not been met. There is no basis in the record for a grant of service connection for the cause of the Veteran's death. Reasonable doubt does not arise as there is no evidence to support the appellant's claim. 38 U.S.C.A. § 5107(b). Nonservice-Connected Pension Amount As noted above, the appellant has already been determined to be the helpless child of the Veteran and therefore eligible to receive non-service-connected pension benefits. The issue on appeal here is the amount of benefits payable to the appellant; such amount is set by Congress included in the applicable published statutes and regulations. With respect to the appellant's position as the child of the Veteran, the statute provides: The Secretary shall pay to each child (1) who is the child of a deceased veteran of a period of war . . . , and (2) who is not in the custody of a surviving spouse eligible for pension under section 1541 of this title, pension at the annual rate of $2,020, as increased from time to time under section 5312 of this title and reduced by the amount of such child's annual income . . . but in no event may such annual rate of pension exceed the amount by which $2,020, as increased from time to time under section 5312 of this title, exceeds the annual income of such child. The appropriate annual rate under such section 1541(c) for the purposes of the preceding sentence shall be determined in accordance with regulations which the Secretary shall prescribe. 38 U.S.C.A. § 1542. The appellant has asserted that she is entitled to receive a higher monthly benefit payment, specifically $488, by virtue of her status as a helpless child. In addition, she has raised concerns that the reason for the receipt of a lesser amount is that VA has incorrectly included the amount of her Social Security benefits as countable income. The appellant's argument appears to be based on the provisions of 38 U.S.C.A. § 1313, which governs the payment of DIC benefits. This statute provides that whenever there is no surviving spouse of a deceased veteran entitled to DIC, DIC shall be paid in equal shares to the children of the deceased veteran, with $488 payable for a single child. 38 U.S.C.A. § 1313(a). The cause for the appellant's confusion is that, while she is legally considered a helpless child of the Veteran, the VA benefits she receives are non-service-connected death pension benefits, not DIC benefits. As discussed above, DIC benefits are only available where the Veteran's death is considered service-connected or where he had been in receipt of service connection benefits at the 100 percent disability level at the time of death. Since the Veteran's death has not been shown to be service-connected and since he did not have a service-connected disability at the time of his death, the provisions with respect to DIC benefits do not apply. 38 U.S.C.A. §§ 1313, 1318. In this instance, because the DIC provisions do not apply, the appellant's benefits are those set forth in 38 U.S.C.A. § 1542, namely $2020 per year, or just over $168 per month. 38 U.S.C.A. § 1542. Congress having been explicit as to the amount payable here, the benefit-of-the-doubt rule is not applicable. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to nonservice-connected pension benefits in excess of $2020 per year is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs